The Central government’s amendments to a nearly five-decade-old law to get rights over “enemy property” extinguish all pending and future claims by even Indian citizens to get back such property vested with the custodian. Once the bill turns into an Act, it would be open to challenge in court on grounds of violation of rights to equality, trade and property, said legal experts.
A custodian is an agent of the Central government. Three years after the 1965 Indo-Pak war, the Indian government enacted a law to vest with a custodian all properties belonging to an enemy or an enemy country. The bill to amend the 1968 law, though, attracted both severe criticism and compliments from constitutional analysts. “It helps the government confiscate enemy property,” said Anand Grover, activist lawyer, He called it “a discriminatory provision”.
The government has now enlarged the definition of enemy and enemy property to properties that may be held by even Indian citizens who are heirs and legal successors of the original enemy—a person, a company or a firm which belonged to or went to reside in an “enemy” nation.
Eminent jurist Abhishek Manu Singhvi told TOI: “Laws can be passed but unless they are reasonable, all inclusive and have an element of compassion built into them, they are bound to be challenged. I have no doubt that the Act will be challenged. Ouster clauses like this are largely meaningless and don’t immunize either constitutional or jurisdictional challenges. Only a court can reconcile exigencies of the Act with constitutional rights.” Singhvi added, “That fact that in the historical past, ancestors may have migrated to an enemy country does not mean that successors, grand and great-grandchildren are also enemies who must lose extremely valuable rights to property of a humongous nature in quantum and value.”
Senior counsels Milind Sathe and Shekhar Naphade, though, said the government was empowered to pass such a law as a sovereignty. Sathe said that once it becomes an Act, pending cases in court by heirs to reclaim property may stand abated. “The amendment is an aspect of Indian sovereignty and such sovereign functions are recognized even in international law. And though it may cause a loss to some individuals, it is a policy decision translated into law in national interest,” said Naphade from Delhi. But Mumbai solicitor Homiar Vakil said, “The new provisions can’t be retrospective to cases pending in court. The provisions are arbitrary, discriminatory and must be challenged.”